Law, Social Justice & Global Development
(An Electronic Law Journal) 

Writing in the Postcolonial: Postcolonial Legal Scholarship

Ian Duncanson
Visiting Research Fellow, Institute of Postcolonial Studies,
Melbourne, Australia

Ian.Duncanson1@bigpond.com 

This is a refereed article published on: 30 April 2003

Citation: Duncanson, I, ‘Writing in the Postcolonial: Postcolonial Legal Scholarship, 2003 (1) Law, Social Justice & Global Development Journal <http://elj.warwick.ac.uk/global/03-1/duncanson.html>

Abstract

The present paper concerns the importance of empire as a context for the English common law and  notices the importance of the intriguingly paradoxical idea of the Englishman as a cultural matrix within which the law was conceived. The task in this paper is to remain faithful to the revolution generated by postcolonial studies, to use it for constructive, egalitarian purposes. Given his history, the white man, his culture and his political institutions, and the policies generated within them, are all justifiably the object of suspicion from elsewhere. This paper explores the birth of the empire and the connectivities of this to the production of Englishness, examining the imperial conquest of Britain abroad in tandem with the development of English parliamentary sovereignty, and the championship of individual liberty at home. If postcolonialism studies the ordering practices of imperial subordinations, as much as feminism studies the subordinating protocols of hegemonic gendering, the answer is that since we are all implicated in the processes of privileging and disadvantaging associated with empire, all scholarship critical of those processes is legitimate. The paper thus draws on the old political history texts of Britain to demonstrate that inasmuch as the England had produced the Empire, the Empire similarly produced England – that far from being exotic embellishments on domestic developments, parliamentary debates on India and Canada showed that the empire was central to the production of Englishness.

Keywords: Empire, English culture, Postcolonialism, Parliamentary Sovereignty 

1. Writing for: when, if ever ?

Speaking  for – or perhaps worse since it may be more permanent – writing  for, is an extremely hazardous undertaking. It runs the ethical risk of both constructing and denigrating difference. But does academic discourse – to which this paper is intended to be a contribution - and consequently the ethics it contains, any longer matter? It may be, as one writer has recently put it, ‘anachronistic.. to believe that universities have been able to maintain a role in the cultural interpretation of their societies’. If by this is meant that universities can no longer claim the unique, distanced and authoritative role envisaged by, say, Cardinal Newman or Jacques Barzun, and are no longer needed as ideological apparatuses supporting a homogeneous identity for empire or nation-state, the contention may be correct. But one implication of this assertion of anachronism paradoxically reinforces Judith Grbich’s observation that ‘scholarship practices are now acknowledged as one of the cultural forms in which the politics of order are negotiated’. Universities are not (and never were) unique and solitary producers of knowledge. Social heterogeneity requires many sites of perception in order for it/them to be recognized. Postmodernism, feminism and the ills they claim to identify in writing and other forms of media, scholarship, and politics are increasingly imbricated in the endless negotiations over truth claims about who we are and what we should do about it. Whether we identify formally as scholars or not, when we consider these claims it must be, to modify Marx, of the other of whom we speak and to whom we listen, as well as of ourselves. The real world is our many selves.
2. Feminism

In a challenge to some male scholarship, film theorist Zoe Sofia warned a decade ago that for many male scholars locked into the competitive hierarchies of traditional academic practice, feminism was simply another discipline to ‘get on top of’, as she put it, on the route to the next chair or deanship. The silenced woman becomes a means to another’s end in this process, and the ‘docile woman whose services have been co-opted to promote the dominant norms of masculinity’ functions equally to maintain the status quo despite the best intentions of the new ‘discipline’. To avoid such an outcome by policing its boundaries and excluding those without the appropriate (in this case, biological) credentials, feminist theory would simply repeat the stultifying ‘normalization’ identified in the disciplining processes of the 19th century and after by Foucault.  How is a site to be imagined, then, which is amenable neither to becoming a rung on a masculinist career ladder nor to lapsing into that biological essentialism from which Man/Woman, ‘ ‘human nature’, the original mother tongue of history’ which Sofia wishes to reinscribe with a less oppressive content, derives its power?

The answer surely lies in the activity of reframing that Greenblatt and Gunn recommend in their discussion of interdisciplinarity.

‘The disciplinary gives way to the interdisciplinary only when changes in the interpretive frames actually manage to produce changes in what can be seen with their assistance and only when reconceptions of the question also change what can be represented as an answer’.

A constructive and progressive feminism of the kind to which Sofia and other feminists belong reframes the question of sex and gender. It is therefore inseparable from a much broader inquiry that is sensitive to the varieties of gendered being and their performance, and to the historic role of the repression of this variety in providing the ‘original mother tongue of history’ with an alibi for the politics of dominance and subornment. As such, the principal criterion of who can speak is not that of identity but of the linked categories of performance and outcome; not of who participates in the dialog but the manner of their doing so. The reproduction of inequality and exploitation within such an inquiry would signal the failure of the enterprise. To put it plainly, since Kaja Silverman reminds us that the penis and the phallus are socially very different, any questions about qualifications to speak in gender discourse should be about the outcomes of the discourse rather than the characteristics of the participants.

A similar argument can and should be made about postcolonial studies. Given his history, the white man, his culture and his political institutions, and the policies generated within them, are all justifiably the object of suspicion from elsewhere. For example, in an article reviewing the implications of globalisation for the legal professions of former colonies, countries outside the EU and US metropoles, Wes Pue reports both suspicion and a warning from a Nigerian student, for whom globalisation means, ‘... the white man is coming again … what does he want this time? And where will that leave us?’

3. Postcolonialism

Guha makes the point about one particularly significant set of contributions to postcolonial studies, that it confronted ‘the gods of Britain’s neocolonial scholarship so polemically (with an) irreverence approaching sheer impudence for those in authority’ in India with ‘an important historical truth, that is, the failure of the Indian bourgeoisie to speak for the nation’. What place can the white outsider have in this kind of confrontation? Can white people from rich countries enter the world of postcolonial scholarship without, moreover, incurring the suspicion that, like the anthropologists of the imperial past, they are seeking to legitimise their masters and promote themselves by ‘writing, on the backs of blacks’, ‘texts (which) often appear to be authored by bodyless beings who are able to observe the field without leaving a footprint’? 

If postcolonialism studies the ordering practices of imperial subordinations, much as feminism studies the subordinating protocols of hegemonic gendering, the answer seems to me to be that since we are all implicated in the processes of privileging and disadvantaging associated with empire, all scholarship critical of those processes is legitimate. To examine the class, gender and ethnic relations in terms of the imperial project does not reduce the ‘native’, or women anywhere, or the working class at the metropole, each to the other The contagious effect of the radicalism of feminist challenges to the status quo is matched, a passage from Ania Loomba implies, by that of the colonial intellectuals’ fight against colonialism which provoked:

‘The revolution within ‘Western’ intellectual traditions in thinking about the same issues – language and how it articulates experience, how ideologies work, how human subjectivities are formed and what we might mean by culture’.

The task is to remain faithful to that revolution, to use it for constructive, egalitarian purposes.

4. Empire and the Production of Englishness

A number of studies have demonstrated that, far from the marginality of empire that one might infer from the old British political history texts – GN Clarke’s Oxford series, for example – in which colonial wars and House of Commons debates about India or Canada feature as exotic embellishments upon the more significant domestic developments, the empire was central to the production of Englishness. The present paper concerns the importance of empire as a context for the English common law and notices the importance of the intriguingly paradoxical idea of the Englishman as a cultural matrix within which the law was conceived. Conventionally, the British Empire is considered to have existed in two phases. Vincent Harlow, writing in 1952, places the transition from the first to the second empire in the three decades from 1763, and this convention is revisited in part in the second volume of Simon Schama’s recent multi-media history of Britain. Of the first empire, which Schama describes in a chapter headed, ‘The Wrong Empire’ he writes:

‘(t)he connection between the championship of liberty at home and the creation of a maritime, commercial empire overseas, was at the heart of the new, the first truly British patriotism … As the heirs to Drake and Raleigh (Viscount) Cobham and his (18th century) protégés believed that this empire would be something new in the world precisely because it would not suffer Rome’s fatal addiction to territorial conquest, a vice that had led to despotism ...’

This view is one that may have been more plausible to some English people than to others and, perhaps also to those Scots whose interest in the spoils of empire is documented by Linda Colley. The architectural ‘heritage’ of massive English castles in Wales may suggest a different story about the English occupation of that country, as might the experiments of territorial expropriation in Ireland which culminated in Australia under the pretence that native religion, custom and landholding were too incomprehensibly barbarous to be worthy of recognition or respect. One might recall, too, Jonathan Clarke’s remark about the ‘silent presence, just over the mental horizons of most economic historians, of the Royal Navy’, the precondition of British commercial pre-eminence and of  the existence of American and later ‘settler’ societies. Howard Zinn remarks that it was George Canning rather than the Monroe Doctrine who ‘called in the new world into being in order to redress the balance of the old’ without much thought, one way or another, about the new United States. This exercise of naval power links the two empires and makes a simple division problematic. Nevertheless, there existed a widespread conception of politics and law among individual British men and women of the 18th century throughout the UK and America, voters and non-voters, as custom, albeit contested and subject to negotiation and compromise as to specific substance.

The first empire can be dated from the early chartered trading companies and the settlements of ‘free-born Englishmen’ in the late Tudor and Stuart periods, whose ancient rights the Americans at first during their rebellion saw themselves as defending. Even in the closing moments of the first empire, Harlow writes:

‘18th century British ministers had reached (in 1778) the point where they had been prepared, however reluctantly, to accept the proposition of an American legislature having equal and coordinate jurisdiction with that of Westminster, and an elected Governor general or President’.
Negotiating this proposition was the brief given to the Carlisle Commission, sent to the 13 colonies in 1778, and it contrasts starkly with the British approach to Ireland only a few years later, but into the period of Harlow’s second empire, where the 1800 Act of Union abolished the Dublin legislature and merged the two countries under the hegemony of England. The empire of commerce and freedom seemed by 1800 to have been transformed into an empire of conquest.

A concept of two empires, which can be discerned in a comparison of the writings of, say Edmund Burke and TB Macaulay, provides a useful context in which to study the intersecting fields of culture and law in the metropolis, and the figure of the Englishman is important here. In his changing modality, he operates as a Lacanian Big Other whose law it becomes the subjective desire of the human subjects who produce the empire to fulfil. Englishness, the nation-essence as it changes over time, can be seen from this perspective as the substitute for that lost plenitude, or one-ness with the world of the (m)other that Lacanians refer to as the objet petit a. As Easthope puts it:

‘Society is always incomplete; with modernity that incompleteness comes to express itself as a radically insistent drama of lack… (which) is universal and constitutive for the speaking subject who must strive to refind his or her being within meaning; any identity which would repair lack is borrowed from the Other (as the symbolic order the other is always encountered in a historically specific form)… National identity.. is desired with special intensity; and that desire overlooks the fact that it is more manifestly an effect of construction’.

The place of the state in the apparent (but never for Lacanians fulfilled) satisfaction of this desire provides us with a paradox that explains a good deal about imperialism. The state is always a specific state, composed of a particular nation or nations, but as Lloyd and Thomas argue, in the enlightenment culture ‘represents what it claims to be the fundamentally common identity of all humans; and … the state is conceived ideally as the disinterested and ethical representative of this common identity’.

5. The Harolds

5.1 Harold 1: Grammar School Headmaster

Three people called Harold tell us something about the Englishman of the second imperial phase, two of them tangentially connected with the writer, and the third, paradoxically a US scholar, caught in one text in (surely) feigning lament for the demise of high culture. In 1965, drawing on many years’ experience as a teacher and headmaster in selective, but state-funded grammar schools, Harold Davies published a book that he entitled Culture and the Grammar School. He tells his readers that:

‘[i]ncreasing numbers of children whose families have no experience of the grammar school, and little of the cultural standards they will be expected to assimilate there are crowding into its courses. Many of these (children) come from that large area of society which … used to be thought of as the lower middle and upper working classes ... It is to children from homes like these that the school must transmit our cultural heritage, and this book is largely concerned with the problems ... involved in this difficult task’.

The social location of the ‘pupils’ he has in mind is slightly disingenuously put: if Davies considered that they were no longer thought of by his readers as classed in the way in which the passage denies they are still classed, the identification would not be helpful. And clearly it is a crucial identification, since the purpose of the book is expressed as an exploration of the difficulties involved in transmitting our cultural values to them, of enabling them to metamorphose into Englishmen. Anticipating Foucault’s remarks about ‘the question of the subject’, Davies frames his aspiration for the grammar school as, in part, the reconciliation of a ‘first generation child’ (repeating, too, the trope of European discovery: real existence first comes about when a subject comes to the European’s or headmaster’s notice) to ‘a comfortable reception of ideas and knowledge ... outside the range of his home background. He has to be persuaded to co-operate willingly’. He has to metamorphosise, to pupate, which is of course, what successful pupils do.

b) Harold 2: The Physician

But, of course, not all pupils do metamorphose successfully. Some perish or remain immature without realizing their telos, which is why children need headmasters and natives require missionaries. Thirty-five years after the publication of Davies’ book, a second Harold, Harold Frederick Shipman, was convicted at Chester Crown Court of the murder of fifteen of his patients, and subsequent inquiries suggest a total of more than 200, perhaps as many as 400. Shipman completed his studies at Davies’ school a year before the publication of Culture and the Grammar School. Shortly after the trial ended in 2000, a book by two journalists investigated ‘the most prolific serial killer the world has known’. The authors, the cover continues, ‘had unparalleled access to friends, colleagues and patients. Their in-depth and authoritative investigation looks at how he killed, how he was able to get away with it, and – most important of all – why he did it’.

The horrific nature of the crimes of which Shipman was convicted needs no further emphasis. What is of interest, though, is the way in which Shipman was positioned in the text. Setting the scene for the main events, the investigation, trial and conviction, the writers situate Shipman’s – and Davies’ – school in the mainstream of an adaptive, moderate, society, inherited from before Shipman’s student days and bequeathed to the writers’ and their readers’ presents. To this English society, nourishing and nourished by, the grammar school, extremism of the Baader-Meinhof or the Paris evenements variety remained foreign. England’s ‘first generation children’ would leave their parents, with their rented housing, behind, and move conscientiously into middle class careers like characters in a Margaret Drabble novel. If any of Shipman’s contemporaries at school became sex offenders, burglars or embezzlers, tramps or shady businessmen, either Whittle’s and Ritchie’s ‘in-depth and authoritative investigation’ did not discover it, or the reader is not told.

Shipman’s difference from this proper English character, the implied answer to the question ‘why he did it’ tracks the native’s difference, in the imperial gaze, from the ideal of who he should be. Smaller than his wife, who is photographed as a very large woman, there is a hint of his effeminacy in the suggestion that Shipman is ‘henpecked’ that echoes the significance for the writers of his wearing fancy coloured waistcoats at school.  As a schoolboy he was aggressive on the rugby field but shy and socially inept on other occasions. He was later arrogant in his response to the investigating police, but never especially intelligent (he almost failed to get into medical school). He was cunning (he literally got away with murder) but stupid (his forgery of the murdered patient’s will that proved his undoing was crudely prepared). At a time when wholesomeness meant that ‘girls were still keeping their legs together in real-life encounters with the opposite sex’, Harold’s girl had not done so, and he had ‘got her into trouble’. Harold is dirty , treacherous (to former colleagues), drug addicted and evil.

Sexual instability has long been a feature of the native in the occidental gaze, although the concern that this instability might infect the master does not reach its Victorian level of anxiety until the full development of the imperial relationship of master and servant, when intimate contact between the two seemed to threaten the purity of the homeland across the whole range of Englishness. If we bear in mind the connectedness of power and subjectivity in Foucault’s writing, we can make particular sense here of his remark that:

‘..colonization, with its techniques and juridical and political weapons transported European models to other continents, but ... this same colonization had a return effect on the mechanisms of power in the occident ... a whole series of colonial models had been brought back ... so that the occident could traffic in something like colonization, internal colonialism’.

The lecherous, opium-smoking ‘Chinaman’, for example, whose alleged irresistibility to young white girls spelled miscegenation, was an important impetus for the partial constitutional separation of Australians – who were persuaded to see themselves as purer, more vigorous Englishmen - from the UK in 1901:

‘One strand of evolutionist thinking identified ‘savages’, women and children as three types of inferior humanity, evincing in common certain moral and mental inadequacies that signalled their incomplete state of evolution’.

But anyone familiar with TB Macaulay’s descriptions of the ‘soft Bengalee’ and with Macaulay’s prescriptions for empire will recognize the repetition that both of the above Harolds represent, which is about the redeemability that Leela Gandhi refers to when she discusses the empire as a pedagogical exercise. In the text I referred to Shipman’s evil is certainly a mark of difference, and that difference is imbricated in the evil in the form of an enigma that titillates and horrifies, but the question, ‘why’, is raised principally because the grounds on which it could be answered can never be established. The story is instead a moral one like Davies’ account of the progress of ‘the first generation child’, the first child of his class who has placed before him the opportunity to grasp ‘our’ heritage, the reality that makes him the first and his predecessors unreal, invisible. Dedicated young teachers, a new purpose-built grammar school with ancient origins, and a Guardian-reading headmaster raises those whose measure Shipman makes it possible to take. They have to be brought to want the future. For Macaulay, the depraved superstition of the native, as the upright servant of the Company finds him, provides the measure of what the willing native can be brought to desire through the pedagogy, the wisdom and above all the honesty and dependability of European rationality. This is Macaulay’s  ‘empire exempt from decay’. Such a native will be, in Macaulay’s vision, English ‘in taste, in morals and in intellect’ but, and this is the point, he will still be a native, still, in Macaulay’s words, Indian ‘in blood and colour’. He must qualify for his status and there will always be a point beyond and above him from which those qualifications can be evaluated.

c) Harold 3: English Professor and Cultural Warrior

This brings us briefly to the third of our Harolds, to make the point that we still to a considerable extent dwell within the conceptual context of the second empire. In an immensely erudite text, The Western Canon, Harold Bloom defends both the performance of, and the work of identifying, artistic excellence against critics whom he identifies as belonging to the ‘Schools of Resentment’. These schools, collectively, Cultural Studies, he accuses of reducing aesthetics to ideology by studying high culture for its social effects, or the political uses to which it may be put. One could surely have no quarrel with an aesthetics that sought to define excellence – and Bloom admits that definitions of excellence vary over time – but at the same time one needs surely to notice their ideological use. It is in his rejection of the importance of this latter, not in his defence of high art, that the political dimension of his argument appears, ironically, whatever his intentions, deploying High Culture in the cause of what Leavis referred to as ‘technologico-Benthamism’, but also, connectedly, in the cause of colonialism, in the sustaining of the comprador.

For, as Said has pointed out, ‘imperialism is a cooperative venture’. The subject of English, untainted by the political animus of Lacanians, feminists and others, nourishes ‘those bourgeoisies (who) in effect have often replaced the colonial force with a new class-based and ultimately exploitative force; instead of liberation after decolonisation, one simply gets the old colonial structures replicated in new national terms’.  

Bloom mournfully intones:

‘What are now called Departments of English will be renamed departments of cultural studies, where Batman comics, Mormon theme parks, television, movies and rock will replace Chaucer, Shakespeare, Milton and their peers’.

The imputation to anthropological and political evaluations of cultural phenomena – in which Neighbours may well assume – why not ? - equal importance with The Tempest, Batman with Chaucer - of the conclusion that they are all also aesthetically equal, is calculated intellectually and politically to subvert study of the regulatory use to which high and low culture may be put. And this in turn assists politically the argument that, since, therefore, universities have apparently abandoned intellectual judgment in favour of mindless relativism, it is better that they be turned into technical colleges. Here they can be trained according to the nostrums of Matthew Arnold’s farcical Businessman Bottles, vocational training full of the latest techniques of whizzes and bangs dressed up instantly obsolescent managerial clichés. When we look at the components that make up the Schools of Resentment, we revisit the sites, that the pedagogical empire was concerned should remain in their place, preferably unrecognised: what are the concerns of ‘Feminists, Marxists, Lacanians, New Historicists, Deconstructionists, Semioticians’ ? Not, indeed, the denial of aesthetic excellence, but rather investigation of the signs of subjectification, which may be also signs of oppression, and which can never be entirely separated from aesthetic concerns. 

The empire of which I am arguing such expressions as Bloom’s are the sign is the empire of conquest, it is the empire of Bentham and social engineering – strongly applied in India, the quintessential empire of conquest, as Eric Stokes has shown. It is the empire of the penitentiaries and the new poor law. The law in this empire is ‘the sign of the volition of the sovereign’. Its ethics is the objective science of utility and political economy, which the state can draw upon through its corps of experts.

6. Scepticism and Conventionalism.

Preceding that empire, as we have observed, we find another. At its horizon is a political struggle over the freeborn Englishman, over, specifically whether independent manhood or propriety in the form of substantial property grounded membership of the polity. How far the radicalism of the first answer survived into the period in which the second triumphed is a matter of dispute, Ashcraft, for example, contending:

‘Against the grain of some recent scholarship, that the style of argument, terminology and basic presuppositions of the Levelers’ political theory made a distinctive and lasting impression upon the consciousness of those living in seventeenth century England’.

In the consciousness of eighteenth century observers, Phillipson argues – perhaps against another ‘grain’, of the Enlightenment as the Age of Reason – the danger represented to 18th century writers by this earlier radicalism lay precisely in its exaltation of reason, albeit theological reason, that sought to derive necessary social arrangements from first principles. Humean scepticism rejected the possibility of foundation and certainty in human knowledge in a way that in some of its implications foreshadows postmodern thought and, similarly, recognized that relativism is unworkable as a mode of order and existence: as complete relativists, we could not function, individually or collectively, so if reason allows no escape, what does – this is Hume’s problematic. ‘From a body of like colour and consistency with bread, we expect like nourishment’ and perhaps to ensure our survival the (epistemological insecure) expectation is a necessary one. ‘But (philosophically) this surely is a step or progress of the mind that needs to be explained’.

‘We save ourselves from this total scepticism only by means of that singular and seemingly trivial property of the fancy by which we enter with difficulty into remote views of things and are not able to accompany them with so sensible an impression as we do those which are easy and natural ... Most fortunately it happens that since reason is incapable of dispelling these clouds (of uncertainty and doubt), nature herself suffices to that purpose and cures me of this philosophical melancholy ... I dine, I play a game of backgammon and am merry with my friends ... ’ 

Hume’s scepticism is not, of course, an elegant epistemological minuet without political implications, which returns us to Grbich’s point about the situation of scholarship as an important terrain of social struggle. He does not make the mistake of which sceptics are sometimes accused, of absolutising uncertainty and thus undermining his own position, but merely observes that nobody has provided him with a convincing argument that, for example, the constant serial conjunction of events conceals an occult connection that will always obtain. As a matter of observation, he sees that we assume a knowledge of personal identity where even the metaphor of the theatre connotes more solidity and continuity than is justified by what constitutes the mind: the ‘perceptions (that) successively make their appearance, pass, re-pass and glide away in an infinite variety of postures and situations’. In this un-self present, almost un-being,  the permanence of matter that we do not see, the reliability of such regularities as the sunrise, gravity or the effect of a moving upon a stationery billiard ball are formed, like history, by a continually reconstructing self in conversation, using negotiated conventions with other selves in the context of dense webs of experience.

Humean humans are creatures for whom reason and passion are crafted by conversation to inform belief:

‘The more we converse with mankind and the greater the social intercourse we maintain, the more shall we be familiarized to these general preferences without which our conversation and discourse could scarcely be rendered intelligible to each other’.

And, apart from ‘general opinion.. in all questions with regard to morals or criticism, there is really no other standard by which any controversy can be decided’. Thus, belief, or opinion, and not force, form the basis of government, he argues; or, if we want further, empirical evidence, how should we explain the government of the many, who possess force, by the few, who do not – even the ‘Soldan of Egypt or the Emperor of Rome’? 

‘… the only rule of government which is intelligible or carries with it any authority is the established practice of the age and the maxims of administration at the time prevalent and universally assented to’.

‘Their sentiment or their understanding’ was what glued, or catastrophically unglued, the social order of humankind. Phillipson notes the conservative conclusions to which this leads Hume: authority cannot be grounded other than in its acceptance; without it, property, justice, civilization itself are jeopardized. Elsewhere, he expresses a preference for absolute monarchy on the prudential ground that whilst one may ‘entertain a magnificent idea of the British spirit and love of liberty since we could maintain our free government during so many centuries’, the enormous growth in central government power and hence Royal patronage since the Glorious Revolution had made the ascendancy of crown over parliament eventually inevitable: better to concede peacefully, perhaps even early, than risk physical conflict.

7. Politeness and Conversation

But Hume’s conviction that the presence of foundations has never been successfully established as more than conventions negotiated and moderated by conversation, and the corollary, that political authority must be based on belief does not lead to the inevitable need for an authoritarian basis for government. Conversation and the establishment of what is the ‘general opinion’, the source of moral and critical standards, are neither unidirectional nor monological. Quite the contrary, the source of Hume’s apprehension in relation to the constitution seems to have been his fear of ‘faction’, of the, to him, anarchical dangers in the opposition politics implied by parliamentary government. If his scepticism does not lead to the anti-postmodern criticism that ‘anything goes’, neither can it lead inevitably to the authoritarian assertion, ‘this must be’.

The social milieu in which Hume was writing, as it appears in Brewer’s work, suggests that the vigorous pursuit of an ideal of ‘politeness’ was seen ‘in opposition to political divisiveness and religious bigotry’, the anarchic threats Hume feared the English might succumb to, and as ‘proposing a more harmonious ideal.’ ‘The proponents of politeness set out to create an ecumenical, urbane community of those who shared a vision of the world’. Politeness, Brewer is suggesting, absorbed drama – the theatre, the opera, even history and the novel – into the performance of its audience in attending, understanding and conversing about it, and these latter performances in turn became the theatre in which one acted one’s part in front of one’s fellows. ‘To many enlightened minds, the past was a nightmare of barbarism …bigotry (and) fanaticism ... that sword of the saints which had divided brother from brother, must cease; rudeness had to yield to refinement’. ‘This accent’, then, writes Roy Porter:

‘on refinement was no footling obsession with petty punctilio; it was a desperate remedy meant to heal the chronic social conflict and personal traumas stemming from (earlier) civil and domestic tyranny and topsy-turvy social values’.

As both authors suggest, Addison’s and Steele’s Spectator and Tatler magazines, the coffee house and the public park, along with the other venues and spectacles mentioned, formed a strategy, in which openness to the wider public and participation – even as a spectator-performer - in an ideal was vital, to found that authority on which order and property and law might be based in club and coffee house:

‘no matter that many establishments were notorious for their drunkenness and lax morals, Addison and Steele shaped an exemplary institution, fabricating an ideal of polite conduct and good taste developed in a convivial environment’.

Brewer does find evidence of the more didactic strategy of creating a heritage to be distributed and made common, something I associated with the empire of conquest – and which began to be adopted in India under Warren Hastings in the 1770s – in a work by Thomas Sheridan in 1756. But the approach to education, particularly of the young, as a regulatory practice comes later in time.
8. Barbarous, ill-explained Law.

Authority, the basis of the constitution, thus the ultimate source of Parliament’s right to legislate, and of the validity of the common law seems, then, to be something painfully negotiated – and it is clear, for example from Wilson’s discussion of Addison’s attacks on ‘effeminacy’ on the one hand, and from the continuing activities of women in maintaining the politeness on which civilization seemed to depend on the other, that there was no consensus or homogeneity. The people were there in the authority-making business, as we know from the writings of EP Thompson, however vaguely for the theorists, and however increasing the attacks made upon their customary rights. 

Blackstone, in his lectures for young gentlemen attending Oxford, writes of Parliament’s ‘being the place where that absolute despotic power which must in all governments reside somewhere is entrusted by the constitution of these kingdoms’, and of municipal law as a rule prescribed by the supreme power.

Compared with the situation ‘in all tyrannous governments’, however, the liberty of the subject is not threatened by this ‘despotic power’, however, since the King as executive must confront the tripartite legislature of King, Lords and Commons, for his will to be translated into law. When Blackstone addresses the Lockean question, ‘whether there still remains in the people a supreme power to remove or alter the legislative when they find the legislative act contrary to the trust reposed in them ...’, like Hume he takes what clearly seems to him a prudentially conservative path. Such an act of removal, Blackstone says, would retroactively as well as proactively abolishes all laws, ‘annihilating the sovereign power’ and compelling people to begin again on a new foundation. In practice, revolutions are not generally taken to have this effect. But in a sense, of course, exactly what Hume and the figures whom Porter and Brewer discuss are doing, is beginning again on a fresh foundation, frightened into what Hume recognizes to be a discontinuity with the Stuart constitution and the discontents it provoked, into conversation, understanding, away from zealotry and the search for foundations based on reason, a new sentiment that will bring peace and order, protect property and enhance commerce. Hume, as we have seen, wants for prudential reasons to go further and begin again on the constructed foundation of absolute monarchy. In this context, Blackstone’s concluding remarks on the subject, ‘so long, therefore, as the English constitution lasts, we may venture to affirm that the power of parliament is absolute and without control’, means rather less than it says. The absolute power of parliament rests on the constitution, and the continuing existence of the constitution rests in turn on the construction of polite society in the manner discussed above.

This is certainly Burke’s position. Long before his dismissal of the French assembly as nothing but provincial lawyers engaged in the doomed fantasy of constructing government from rational first principles, he distinguished the ‘grandeur’ of law from the expositions given by its technicians, which he considered ‘narrow, contracted notions’:

‘They (i.e. lawyers) presented jurisprudence ‘in barbarous terms, ill-explained, a coarse but not a plain expression, an ill-digested method, a species of reasoning the very refuse of the schools’.

Like Blackstone, who had hoped that his Vinerian lectures might inspire a broad liberal education, Burke believed that the lawyers of his own time were not the people best equipped to understand its socially contexted nature, what it rested on, and what depended upon it. In an early essay, Burke points to lawyers’ misapprehensions about the common law’s uniqueness – whereas, he remarks, its borrowings from Roman and other foreign jurisdictions are obvious – and the ‘persuasion hardly to be eradicated from (their) minds that English law has continued in the same form from antiquity’. Far from having no beginning, another lawyer’s conceit - in Burke’s view, designed to obtain for it a reverence that would be better earned through liberal learning - the evidence of its conception and evolution is for him manifest. As a Whig, Burke ‘argued that the laws were the product of the people’s insistence that their liberties be protected from the arbitrary power of the king’. Moreover, the common law ‘is compounded, altered, and variously modified according to the various necessities which the manners, the religion and the commerce of the people have at different times.

Consistently with this view of law as continually produced by and continually maintaining the manners, religion and commerce as they change over time, Burke was eventually brought to support the cause of the 13 colonies:

‘Public troubles have often called upon this country to look to its constitution. It has ever been bettered by such revision. If our happy and luxuriant increase of dominion and our diffused population have outgrown the limits of a constitution made for a contracted object, we ought to bless God, who has furnished us with the noble occasion for displaying our skill and beneficence in enlarging rational happiness and of the making of the political generosity of this kingdom as extensive as its fortune’.

Equally, he objected to India’s being governed by ‘a state in the guise of a merchant’ – the East India Company – and to any suggested supplanting of that country’s own laws, legitimated by the customs of its own people, by English notions of law and property, based on English customs. Since such a supplanting denied the conceptual nexus between people, custom and proper law, he remarked in the Commons debates on Fox’s India Bill in 1783 that ‘every means effectual to preserve India from oppression is a guard to preserve the British constitution from its worst corruption’.

9. A paradox, a paradox, a most ingenious paradox 

We finish with some interesting paradoxes. The Augustan age, which was the site of so determined a struggle to attain peace through restraint and politeness, ended in what many regarded as another civil war – the American rebellion. This same era, which characterized itself in what Roy Porter has called the ‘sedative rhetoric’ of constitutionalism, government based on the gradually changing customs of the governed, was, as the work of Thompson and Linebaugh demonstrate, undermining the customs of the poor with coercive and immiserating consequences by the end of the century. In this sense, the first empire is the foundation of the second. As Hay and Rogers put it:

‘In the food riots in the Midlands at the end of the century, magistrates were often not to be found residing for many miles around the most populous industrial areas. The letters from the few who did, beseeching the government to send troops, sound like the voices of colonizers surrounded by dangerous and dangerously unknown, foreign tribes’.

Postema’s characterization of the shading of eighteenth century law into morality - the absence of that boundary between them of the kind Bentham was to insist was necessary to maintain - ‘because ... there is no sharp line between them in the community governed by that law’ may tell a story that he does not himself have the intent to tell. The morality and the pragmatism of the rich and polite were what they used in their navigation of the law in the direction they wanted to go. The Englishman is important here: the constitution on which both Parliament and common law are based rests on ‘the peculiar circumstances, occasions, dispositions and moral, civil and social habitudes of the people which disclose themselves only in a long space of time’. But it is the Burkean Englishman to whom these circumstances, occasions and habitudes are disclosed and given meaning. ‘I cannot indeed take it upon myself to say that I have the honour to follow the sense of the people. The truth is, I met it on the way, while I was pursuing their interests according to my own ideas’.

Wes Pue makes two excellent points of relevance here. The first is that the old view of law as based upon the sentiment of the people as mediated by the gentleman survived the repressions of the Napoleonic period. Even John Austin, whose legal positivism forms the ideological basis of much of the current common law, came to hold it. The reason is that its counterpart, the Benthamite conviction that:

‘law may be said to be an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state concerning the conduct to be observed in a certain case by a certain person or class of persons who, in the case in question are, or are supposed to be subject to his power’.

invests too much untrammelled power in the sovereign. The lessons for the landholding elite who continued to govern Britain until the end of the century, repeated since 1789, were that sovereignty is often in danger of becoming popular sovereignty, and in the mid-nineteenth century it was too early to gauge the success of the courts in restraining democracy in the United States. 

Pue’s second point is that the old view that the basis of law is the habits and dispositions of the people subject to it, while, he would, I think, agree, implausible when articulated with liberal assumptions of nation-state homogeneity, is not necessarily obsolete, and need not rely on social exclusions as it did for much of 18th century England. For while many of Bentham’s disciples were, like the later Bentham, in favour of a much broader franchise for Britain than its contemporary basis, many of them, as well as fellow-traveller optimists for progress, like Macaulay were true Englishmen of the empire of conquest. Their plans for India became the recipe for reform and for dealing with discontent in Britain. The natives everywhere, brown people, working class and female people and children, were to be free when they were reasonable: Bentham’s ‘object, as he put it at the start of his main work, An Introduction to the Principles of Morals and Legislation, ‘is to rear the fabric of felicity by the hands of reason and of law’. Law was simply a tool, the lawyer merely a skilled technician, the free citizen an appropriately disciplined subject.

None of this should be a surprise. Locke, often seen as the progenitor of liberalism and advocate of law as a technical tool preconditional for a commercial society, at whose doctrines of consent and resistance Blackstone affected a shudder, repudiates the patriarchal basis for a ruler’s power in his First Treatise of Government, the doctrine which Filmer had opposed to the doctrine of consent as ground of political authority. But consent, Uday Mehta reminds us:

‘As Locke makes explicit in the chapter ‘of Paternal Power’ in the Second Treatise and elaborated in ... Thoughts Concerning Education, requires parental interdiction. Reason may be in a Lockean view a natural capacity, but the specific form in which it services a liberal program requires an elaborate pedagogical scheme.. (T)he distinction between the power of fathers and monarchs is never quite as stable or absolute as the Second Treatise would lead us to believe’.

Whether we think of Macaulay’s advice to the House of Commons to fund schooling on the ground that the state, which has the duty to punish incivility has also the duty to teach civility, of Matthew Arnold’s comparison of elementary schools and prisons – both operate for the ‘protection of society’ and the maintenance of order - of Robert Lowe’s injunction during the 1867 Reform Bill debates to ‘prevail on our future masters to learn their letters’ or of Mill’s preconditions for self-rule – ‘training the people in what is specifically wanting to render them capable of a higher civilization’ – we find an intimate connection between training and order, discipline and law. The pedagogical narrowing of focus among lawyers under the influence of the positivists may seem curious in an era whose leading non-legal thinkers clearly linked order and culture. As late as 1921 – and we have seen, as late as 1965 or even 2000 – legal order and constitutional change are connected in directly imperial language.

It is, perhaps to be explained, in the empire of conquest, by the culture of hierarchy and top-down ordering that prevailed. In the Augustan period, hardly an egalitarian moment in practical terms, the emphasis on conversation, sensitivity (as that term was used) and understanding as the necessary underlay of order and law, led to serious explorations of non-sectarian egalitarian thought in writers such as Paine, Godwin and Wollstonecraft, and provides us now with flexible forms of social thought capable of recognizing and accepting non-hierarchical notions of social difference. The imperial mission to make the parochial universal required training rather than dialog, paternalism rather than equality, and, when socialism threatened the order of things, expertise and bureaucracy rather than participation. As Adrian Sinfield observed the welfare state was the price the imperial order had to pay to survive the radical demands generated by World War II. Its administration, remote from those by whom it was called into existence, was conceptually defended in the ‘séance of self-designating officials’ found recognizing their own paramount legitimacy in the jurisprudence of HLA Hart. We now have to heed Sinfield’s warning, that ‘if welfare capitalism does not work, we are back to the situation (where) the governing elite maintains itself and the forces and relations of production by repression.’. Imperialism, with its new wars, on drugs, terrorism, ‘rogue states’ and axes of evil, provides both a cultural and legal vocabulary for the production of repression, but also, to return to Grbich, as scholars we can find in the study of imperial practices a scholarly terrain on which to conduct the struggle against oppression.